A-23909, AUGUST 17, 1928, 8 COMP. GEN. 77

A-23909: Aug 17, 1928

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REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A PAY ROLL TRANSMITTED THEREWITH CONSTITUTING THE CLAIM OF CAPT. SHOWS THAT CAPTAIN MOTLEY WAS PLACED ON THE ARMY RETIRED LIST JUNE 29. YOU ARE IN DOUBT WHETHER AFTER COMPLETING 10 YEARS' SERVICE HE IS AGAIN ENTITLED TO COMPUTE HIS RETIRED PAY UNDER THE RATES PROVIDED BY THE ACT OF MAY 11. IS AS FOLLOWS: THAT HEREAFTER THE RETIRED PAY OF THE OFFICERS AND WARRANT OFFICERS OF THE ARMY. WHO WERE RETIRED ON OR BEFORE JUNE 30. THAT ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THIS ACT ARE HEREBY REPEALED. RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED PAY. IS THE SAME. OBVIOUSLY THE PAY THERE CONTEMPLATED IS THE PAY BEING RECEIVED BY THE OFFICER WHEN THE LAW BECOMES EFFECTIVE OR WHEN HE IS ENTITLED TO PAY THEREUNDER.

A-23909, AUGUST 17, 1928, 8 COMP. GEN. 77

PAY - RETIRED - ARMY OFFICER WHEN AN OFFICER OF THE ARMY RETIRED JUNE 29, 1922, FOR WOUNDS RECEIVED IN BATTLE BECOMES ENTITLED TO PAY UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, PURSUANT TO THE ACT OF MAY 8, 1926, 44 STAT. 417, HE MAY NOT THEREAFTER BE PAID UNDER THE ACT OF MAY 11, 1908, 35 STAT. 108, ALTHOUGH UNDER THE LAST CITED ACT PAY FOR INTERMITTENT PERIODS, BECAUSE OF SUBSEQUENT RETIRED SERVICE, WOULD BE GREATER.

COMPTROLLER GENERAL MCCARL TO MAJ. E. T. COMEGYS, UNITED STATES ARMY, AUGUST 17, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 24, 1928, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A PAY ROLL TRANSMITTED THEREWITH CONSTITUTING THE CLAIM OF CAPT. ROBERT E. MOTLEY, UNITED STATES ARMY, RETIRED, FOR THE DIFFERENCE BETWEEN RETIRED PAY AS CAPTAIN WITH OVER 9 YEARS' SERVICE IN THE THIRD PAY PERIOD UNDER THE RATES PROVIDED IN THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND RETIRED PAY AS CAPTAIN WITH OVER 10 YEARS' SERVICE UNDER THE RATES PROVIDED BY THE ACT OF MAY 11, 1908, FOR THE PERIOD MAY 2, 1927, TO JUNE 30, 1928.

THE OFFICIAL ARMY REGISTER, 1928, PAGE 787, SHOWS THAT CAPTAIN MOTLEY WAS PLACED ON THE ARMY RETIRED LIST JUNE 29, 1922, ON ACCOUNT OF DISABILITY FROM WOUNDS RECEIVED IN BATTLE, AND THAT THE SERVICE RENDERED BY HIM ENTITLED HIM TO LONGEVITY CREDIT AT TIME OF RETIREMENT OF 5 YEARS 1 MONTH AND 28 DAYS, AND AS AN OFFICER ON THE RETIRED LIST ON JUNE 30, 1922, RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE HIS RETIRED SERVICE SINCE RETIREMENT ENTITLED HIM TO A LONGEVITY CREDIT OF 9 YEARS' SERVICE FROM MAY 2, 1926, AND 10 YEARS' SERVICE FROM MAY 2, 1927. YOU STATE THAT HAVING PAID THIS OFFICER SINCE MAY 8, 1926, UNDER THE ACT OF THAT DATE, 44 STAT. 417, UNDER THE RATES PROVIDED BY THE ACT OF JUNE 10, 1922, YOU ARE IN DOUBT WHETHER AFTER COMPLETING 10 YEARS' SERVICE HE IS AGAIN ENTITLED TO COMPUTE HIS RETIRED PAY UNDER THE RATES PROVIDED BY THE ACT OF MAY 11, 1908, 35 STAT. 108.

THE ACT OF MAY 8, 1926, 44 STAT. 417, IS AS FOLLOWS:

THAT HEREAFTER THE RETIRED PAY OF THE OFFICERS AND WARRANT OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, WHO WERE RETIRED ON OR BEFORE JUNE 30, 1922, SHALL NOT BE LESS THAN THAT PROVIDED FOR THE OFFICERS AND WARRANT OFFICERS OF THESE SERVICES OF EQUAL RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE: PROVIDED, THAT NOTHING IN THIS ACT SHALL OPERATE TO REDUCE THE PAY OF ANY OFFICER OR WARRANT OFFICER NOW ON THE RETIRED LIST.

SEC. 2. THAT ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THIS ACT ARE HEREBY REPEALED.

SECTION 17 OF THE 1922 ACT PROVIDES, IN PART, AS FOLLOWS:

THAT ON AND AFTER JULY 1, 1922, RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS CT: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN NOW ON THE RETIRED LIST OR OFFICERS OR WARRANT OFFICERS IN AN EQUIVALENT STATUS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION: * * *

THE SAVING CLAUSE IN SECTION 17 SPECIFICALLY LIMITS THE SAVED PAY TO THE "PRESENT PAY" OF THE RETIRED OFFICER AND THE NECESSARY EFFECT OF THE SAVING CLAUSE IN THE ACT OF MAY 8, 1926, IS THE SAME. IT DIRECTS THAT NOTHING IN THAT ACT "SHALL OPERATE TO REDUCE THE PAY.' OBVIOUSLY THE PAY THERE CONTEMPLATED IS THE PAY BEING RECEIVED BY THE OFFICER WHEN THE LAW BECOMES EFFECTIVE OR WHEN HE IS ENTITLED TO PAY THEREUNDER, AND DOES NOT CONTEMPLATE A FUTURE RATE OF PAY UNDER REPEALED LAWS.

THE ONLY ELEMENT OF DOUBT IS CREATED BY THE LANGUAGE OF THE ENACTING CLAUSE OF SECTION 1 OF THE ACT OF MAY 8, 1926, THAT THE PAY OF THE OFFICERS ON THE RETIRED LIST JUNE 30, 1922,"SHALL NOT BE LESS THAN THAT PROVIDED FOR OFFICERS * * * OF EQUAL RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE," AND THAT LANGUAGE MAY BE THOUGHT TO SUPPORT AN ARGUMENT THAT THE PURPOSE WAS TO PERMIT PAYMENT UNDER THE REPEALED LAWS SHOULD IT THEREAFTER, BY REASON OF ADDITIONAL SERVICE, BE GREATER. THE SPECIFIC PROVISION OF THE LAW SAVES THE PAY BEING RECEIVED BY THE OFFICER UNDER THE REPEALED LAWS, UNLESS AND UNTIL PAY UNDER THE LATER LAW IS HIGHER, AND WHEN THE OFFICER IS PAID UNDER THE LATER LAW THE EARLIER LAWS ARE COMPLETELY REPEALED AS TO HIM.

SUCH A VIEW IS IN CONSONANCE WITH THE TITLE OF THE ACT, WHICH IS "TO EQUALIZE THE PAY OF RETIRED OFFICERS OF THE ARMY," ETC. THE HOUSE COMMITTEE REPORT, HOUSE REPORT NO. 857, SIXTY-NINTH CONGRESS, FIRST SESSION, DESCRIBES THE PURPOSE OF THE BILL AS THE "RESTORATION" TO THOSE OFFICERS RETIRED ON OR BEFORE JUNE 30, 1922, OF THE COMPENSATION AUTHORIZED BY SECTION 1274, REVISED STATUTES--- THAT IS, 75 PERCENT OF THE PAY OF THE RANK UPON WHICH THEY ARE RETIRED; AND AFTER DISCUSSING THE LAST SENTENCE IN THE TENTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922, THAT "NOTHING CONTAINED IN THE FIRST SENTENCE OF SECTION 17 OR IN ANY OTHER SECTION OF THIS ACT SHALL AUTHORIZE AN INCREASE IN THE PAY OF OFFICERS OR WARRANT OFFICERS ON THE RETIRED LIST ON JUNE 30, 1922," IT WAS STATED,"THERE IS NO JUSTICE IN TWO PAY SCHEDULES FOR EQUAL MERIT AND EQUAL SERVICE.' THE SENATE COMMITTEE REPORT NO. 364 CONTAINED THE FOLLOWING STATEMENT AND EXPLANATION OF THE PURPOSE OF THE BILL:

IN RECOMMENDING THE LEGISLATION IT SHOULD BE STATED THAT WHEN THE SO- CALLED SERVICE PAY ACT, APPROVED JUNE 10, 1922, WAS UNDER CONSIDERATION, AN EFFORT WAS MADE TO SECURE FOR OFFICERS IN THE SEVERAL SERVICES WHO RETIRED ON OR BEFORE JUNE 30, 1922, AN INCREASE IN THEIR RETIRED PAY EQUAL TO THAT GRANTED TO OFFICERS WHO RETIRED ON OR AFTER JULY 1, 1922. DUE TO OPPOSITION TO THIS PROPOSAL AT THAT TIME IT WAS IMPOSSIBLE TO INCLUDE IN THE WAY ACT THIS PROVISION, ALTHOUGH IT HAD THE APPROVAL OF THE SENATE. YOUR COMMITTEE BELIEVES THAT IN VIEW OF THE FACT THAT THESE OLDER OFFICERS HAVE TO MEET GREATER FINANCIAL OBLIGATIONS DUE TO THE INCREASED COST OF LIVING TO THE SAME EXTENT AS OFFICERS RETIRED ON OR AFTER JULY 1, 1922, THEY SHOULD BE GRANTED AN EQUAL INCREASE IN RETIRED PAY.

WHATEVER AMBIGUITY THERE MAY BE IN THE CLAUSE REFERRED TO SEEMS TO BE EXPLAINED BY THESE STATEMENTS OF THE COMMITTEES AS TO THE PURPOSE AND INTENT OF THE BILL, WHICH WAS TO GIVE TO OFFICERS RETIRED PRIOR TO JULY 1, 1922, EQUAL PAY FOR EQUAL RANK AND LENGTH OF SERVICE AS THAT PROVIDED FOR OFFICERS RETIRED AFTER JUNE 30, 1922. WHEN THAT EQUALITY IS ATTAINED THE OFFICER MUST CONTINUE TO BE PAID ON THE SAME EQUAL BASIS; THE PURPOSE WAS NOT TO ESTABLISH ANOTHER INEQUALITY BY WHICH THE OFFICER RETIRED PRIOR TO JUNE 30, 1922, MAY SECURE PAY UNDER THE ACT OF 1922 WHEN IT IS HIGHER, BUT REVERT TO THE REPEALED LAWS WHEN PAY UNDER THOSE LAWS MAY BE HIGHER, THUS GIVING HIM GREATER RIGHTS THAN THE OFFICER RETIRED AFTER JUNE 30, 1922; THE EXPRESSED PURPOSE WAS TO EQUALIZE PAY, NOT TO CREATE A DIFFERENT INEQUALITY.